Interface Between Right to Education and IPR: Does Copyright Law Inhibit the Enjoyment of Right to Education?

Interface Between Right to Education and IPR: Does Copyright Law Inhibit the Enjoyment of Right to Education?

Akanksha Jumde (Deakin University, Australia) and Nishant Kumar (Central University of Punjab, Bathinda, India)
DOI: 10.4018/978-1-7998-1835-9.ch003
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The chapter seeks to explore the extent to which copyright law impedes the fulfillment of the right to education and discuss the alternatives that seek to balance these conflicting rights. The chapter is divided into three parts: the first part of the chapter discusses the embodiment of the right to education in several national and international instruments, the extent of problem of the lack of access to educational materials due to copyright protection. The next part of the chapter discusses the flexibilities provided in international copyright law and efficacy of the same, primarily the doctrine of fair use. The last part of the chapter discusses alternatives to fair use and impact of these supplementary mechanisms.
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The First Copyright Statute, the Statute of Anne of 1709, was entitled “An Act for the Encouragement of Learning” (Copyright Act, 1709). Thus, copyright law was founded on the belief that it shall promote the progress and dissemination of ideas and information (Helfer and Austin, 2011). Similarly, the U.S. Constitution empowers Congress to “promote the progress of science” (or in modern parlance, “knowledge” (Article 1, Section 8, Clause 7). By virtue of this power bestowed upon the Congress, Congress devised a national copyright system for according protection to scientific and creative works.

Copyright seeks to protect “original and creative works” and this includes literary, artistic works, which was later extended to musical and cinematographic works. With the invention of the printing press, copyright protection came about to incentivise authors and publishers to derive commercial or financial benefit from their “creations” (The British Statute of Anne, 1710). In light of the underlying principle of copyright law embodied in the Statute of Anne (1709) to incentivise authors, copyright protection has been extended to educational materials as well (Jaszi, 1991). A right to benefit financially from work is articulated, and court rulings and legislation have recognised a right to control the work, such as ensuring the preservation of its integrity. (Masson, 1995). An irrevocable right to be recognised as the work’s creator appears in some countries’ copyright laws. Copyright law is based on the idea that the flourishing of the private markets in copyright-protected works will promote learning. On the other hand, the human right to education imposes an obligation on the States and their governments to provide free education for all, and this, in turn, means the easy and cheap access to educational and learning materials (Masson, 1995).

During the nineteenth century, the state’s role expanded to participate in providing education in the public sphere with the rise of the concept of the welfare state, and its accompanying obligations (Nowak, 1995). The provision of learning materials is an integral part of the human right to education. Copyrights affect the prices at which textbooks and learning materials are provided, and therefore, tensions may arise between the right to education and the monopoly private right of the author owning to that copyright (Nowak, 1995). With the rise of socialist conceptions of the welfare state and its accompanying obligations, specific government responsibilities to provide education in the public sphere developed (Maskus, 2000). Therefore, along with the right to work and the right to social security, the right to education featured prominently in the socialist constitutions and the socialist theories of human rights (Maskus, 2000).

This led to a radical transformation in worldview regarding the scope of the role of the state and its human rights obligations, and thus, the emphasis shifted on the commitment to a universal right to education that is outlined in modern international human rights instruments (Claude & Weston, 1992). This, in turn, required a reconsideration of the relationship between education and intellectual property (Claude & Weston, 1992).

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